Cort v Ku-ring-gai Council

[2005] NSWLEC 190

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Cort v Ku-ring-gai Council [2005]  NSWLEC 190

PARTIES:
APPLICANT
Wendy & Ian Cort

RESPONDENT
Ku-ring-gai Council

CASE NUMBER:      11549 of       2004

CATCH WORDS:     Development Application

LEGISLATION CITED:
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No. 53

CORAM:       Tuor C

DATES OF HEARING:        31/03/2005

EX TEMPORE DATE:        31/03/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr S. Kondilious, solicitor
of Maddocks

RESPONDENT
Mr R. Graham, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

31 March 2005

11549 of 2004                Cort v Ku-ring-gai Council

JUDGMENT

1. This is an appeal against the refusal by Ku-ring-gai Council (council) of a development application (DA 1319/03) to demolish the existing dwelling and construct a detached dual occupancy development at 133 Fox Valley Road, Wahroonga (the site). 

2. A description of the site, its context and the background to the proposal is in the Statement of Basic Facts.

1. The site is zoned Residential 2(c) under Ku-ring-gai Planning Scheme Ordinance (KPSO).  Dual occupancy development is not permissible within this zone.  Approval for the development application is sought under the provisions of State Environmental Planning Policy No 53 (SEPP 53).  The proposal complies with the numerical requirements of this policy. 

2. The key dispute between the parties is whether the proposal complies with the design requirements of SEPP 53, particularly the impact of the proposal on the streetscape.

1. The Court undertook a view and heard expert planning evidence from Mr Lindsay Fletcher, the court appointed expert. Mr Atkins, the council planner, and Mr Glendenning, the applicant’s planner, also provided evidence on site.  There were no resident objectors.

1. Council’s concerns about the impact of the proposal on the streetscape centred on the double garage of dwelling one.  Council considered that the setback of the garage from the street was insufficient and that its location at the front of the dwelling was inconsistent with the character of the street.

2. Mr Atkins considered that the existing streetscape had a formal arrangement of rooms facing the street and that the garage prevented the opportunity for windows and entries to provide interaction and surveillance of the street. In his opinion the garage would be better located to the rear of dwelling one.

1. Mr Fletcher did not agree that the proposal had an unacceptable impact on the streetscape.  In his opinion the setback of the garage was consistent with the setback of the two adjoining houses and the location of the garage and its appearance from the streetscape would be acceptable.  He did not consider that the garage would be the dominant element in the streetscape but that it would be viewed as part of the house through a landscape setback.  Further he considered it to be inappropriate to locate the garage at the rear of dwelling one as this would prevent solar access to the living areas. 

2. I accept Mr Fletcher’s opinion. The immediate streetscape is predominantly single storey dwellings with garages to the side and rooms facing the street. However, the streetscape is also varied with houses of different styles and setbacks in landscape settings and it is not a consistent streetscape.  While it would be preferable to have the garage at the side or the rear of the site, the proposal is for a dual occupancy development that requires side access to dwelling two.  The location of the garage to the rear would be inappropriate planning for solar access to the private living areas which are located away from Fox Valley Road facing north.  I consider the setback and the appearance of the garage of the development from the street to be acceptable and not a reason to warrant refusal.

1. The other issue was the overlooking from the upstairs bedrooms of dwelling one and the study of dwelling two to the adjoining property at No. 131 Fox Valley Road.  I accept Mr Fletcher’s opinion that the use of these rooms and their separation from the adjoining property would result in an acceptable privacy impact and that condition 51 is not required. I also accept Mr Kondilious submission, for the applicant, that condition 66 should be deleted. 

Orders

1. For these reasons the Orders of the Court are:

   1.The appeal is upheld.

   2.Development application (DA 1319/03) to demolish the existing house and construct a detached dual occupancy development at 133 Fox Valley Road, Wahroonga, is approved subject to the conditions in Annexure A.

   3.The exhibits, except exhibits 2, B and C, may be returned.

   4. No order as to costs.

______________________
Annelise Tuor
Commissioner of the Court

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